majority">WALKER, P. J.

It is not made to appear by the record that the court was in error in striking the defendant’s plea in abatement to the indictment. The statute provides that “any plea in abatement to an indictment must be filed at the first term at which the indictment was found, if the accused has been arrested, or if the accused has not been arrested such plea in abatement must be filed at the first term at which it is practicable after the defendant has been arrested.” — ■ Acts of Ala. Special Session 1909, pp. 305, 315, § 23. The killing charged in the indictment occurred during the first week of the fall term of the court in 1912 in the town in which the court was sitting, and the indictment was returned into court during the same week. The plea in abatement was not filed until during the succeeding term of the court. The record does not show that it was filed within the time fixed by the statute above quoted.

The statement of a juror that the mother of his dead wife, who left children who were living, and the mother of Walter Weaver, the person alleged to have been killed, were first cousins did not show that he was connected by affinity within the fifth degree with said Weaver, or that he was subject to challenge by the de*7fendant for cause. — Code, § 7276; Danzey v. State, 126 Ala. 15, 28 South. 697.

Counsel for the appellant with some harshness criticize the trial court for an alleged abuse of its discretion in permitting a witness for the state to -be re-examined after his testimony had been concluded, and the solicitor had had a conference with him. The bill of exceptions does not show that there was such an occurrence as the one complained of. While it shows that the defendant’s counsel suggested, as a ground of objection to certain questions asked this witness, that they followed “another conference” between the witness and the solicitor, it does not show that this suggestion was founded on fact. It is not made to appear that, at the time the questions were permitted to be asked, the examination of the witness had been concluded, or that any one conferred with him after he commenced to give his testimony. We find no evidence of the court’s abuse of its discretion in this matter as it is disclosed by the bill of exceptions.

The evidence as to how one who was in the store when the shooting by the defendant took place was wounded by one of the shots was admissible as being descriptive of part of the occurrence which resulted in the death of the deceased. This evidence, in connection with that as to the location of the wounded person at the time, was capable of shedding some light upon the questions of the relative positions of the defendant and the deceased, and the direction of the shots. There was no error in admitting it. — Hammond v. State, 147 Ala. 79, 41 South. 761; Smith v. State, 88 Ala. 73, 7 South. 52.

The proposition stated in written charge 9 refused to the defendant was covered by written charge 5 given at his request, unless the word “supposition” as used in the former imports something' other or different from *8the meaning conveyed by the word “hypothesis” as used in the latter. As they were used in the respective charges the two words are equivalents in meaning.— Yarbrough v. State, 105 Ala. 43, 56, 16 South. 758. It follows that the defendant could not have been prejudiced by the court’s refusal to give the first-mentioned charge.

In view of the instructions contained in written charges 5 and 28 given at the defendant’s request, it is plain that he has nothing to complain of in the court’s refusal to give his written charge 13.

Obedience to written charge 16 requested by the defendant would have required the jury to acquit him, though they found from the evidence that the defendant shot the deceased when there was no real or apparent necessity for him to do so in order to defend himself, and when he did not really believe that he was in danger. The charge was properly refused.

Written charge 25 requested by the defendant- was properly refused, as it was so expressed as to require a verdict of acquittal if the jury had a reasonable doubt as to the existence at the time of the killing of “a reasonable manner for the defendant to get away from” the position he occupied without probably increasing his danger, though they found from the evidence that he was not at the time in real or apparent danger of death or great bodily harm, and that he did not believe himself to be in such danger. It is not necessary to inquire as to the existence of other faults in the charge. Charge 62 refused to the defendant is subject to a similar criticism.

Charge 40 refused to the defendant was invasive of the province of the jury, and was properly refused. It was for the jury to determine what inference as to the purpose or intent of the defendant was to be drawn *9from Ms use oí a deadly weapon in the circumstances disclosed by tbe evidence.

If charge 44 requested by the defendant had been given, the jury might well have inferred from it that, if one kills another because of fear of personal injury reasonably and honestly entertained, he cannot be guilty of murder, though he was not at the time in any actual or apparent peril of life or limb, and there was no necessity of his taking another’s life in defense of any one. A homicide may have in it every element requisite to constitute murder, though the perpetrator is led to commit the act solely by his honestly and. reasonably entertained fear that at some time he may be subjected to some personal injury at the hands of the victim. Manifestly the defendant was not entitled to require the court to give such a charge.

The court was justified in refusing to give written charge 61 requested by the defendant, as the propositions stated in it were substantially covered by written charges given at' his request.

What has been said above disposes of the rulings of the trial court of which complaint has been made in the argument of the counsel for the appellant. The record presents for review other rulings, all of which have been duly considered by the court. We discover no re-' versible error in any of them. It may be that already more than is necessary has been said in justification of the actions of the trial court as disclosed by the record.

Affirmed.

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